RE JUNAID KHAN

CACV 65/2019

[2019] HKCA 774

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 65 OF 2019

(ON APPEAL FROM HCAL NO. 581 OF 2017)

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J U D G M E N T

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Hon Yeung Ag CJHC (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 1 February 2019, refusing to grant the applicant leave for judicial review.

2.  Pursuant to the Order made by Master Au-Yeung on 28 February 2019, the applicant was directed to lodge his skeleton submissions within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 28 May 2019).  The applicant, having failed to comply with the said direction, is deemed to have waived his right to have an oral hearing.  We shall proceed to consider this appeal on paper based on the materials already lodged according to the practice adopted by this Court: Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307.

Background

3.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2019] HKCFI 315.  We shall not repeat the same here.

4.  Briefly stated, the applicant is a national of Pakistan.  He entered Hong Kong illegally on 6 July 2014 and was arrested by the police on 11 July 2014.  He was then referred to the Immigration Department for investigation and on 13 July 2014, he lodged a non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by the family members of his girlfriend Sumaira, as he engaged in dating relationship with her without consent from her family members.

5.  By a Notice of Decision dated 16 May 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The decision covered BOR 3 risk, torture risk, and persecution risk. By a Notice of Further Decision dated 15 February 2017, the Director rejected his claim on BOR 2 risk.

6.  The applicant then appealed to the Torture Claims Appeal Board (“the Board”) against the decisions of the Director.  After the hearing on 26 April 2017, the Board dismissed the appeal on 29 August 2017.  The Board found that the applicant’s case was private in nature and he had only sustained minor injuries after encountering with his girlfriend’s family members.  The applicant was not arrested, detained or imprisoned in Pakistan. There was no evidence suggesting any hostile acts instigated or authorised by the national Government.  The Board further found that state protection was available and internal relocation would also be a viable option for the applicant.  With the aforesaid reasons, the applicant’s claims for non-refoulement protection was dismissed on all applicable grounds.

7.  On 4 September 2017, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decisions in which he did not provide any grounds for seeking relief.  In the supporting affirmation filed on the same day, the applicant repeated his claim as follows:

“You know already my case is refused I want to appeal in High Court. I have affair in Pakistan with a girl we was love with each other but her family don’t like me. The girl’s brother beat me already with sticks these time and they already attacked on me with gun but we run at the spot. Please proceed my appeal. I am against to previous decision.” (sic)

The Judge’s decision

8.  On 1 February 2019, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [11] – [14] for his refusal to grant leave:

“11.   As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, that the proper occasion for an applicant to present and articulate such a claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers, and that in the absence of any legal error being identified by the applicant, judicial review is not an avenue for revisiting the assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.

12.   Furthermore, the fact that once it has been established by both the Director and the Board that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other areas of Pakistan, they were entitled to come to their conclusion in their decisions that there is no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.   In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

14.   For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

The Appeal

9.  The applicant filed the Notice of Appeal on 8 February 2019 and in the supporting affirmation filed on the same day, he set out the following grounds of appeal against the decisions of the Director:

i.   no reasonable basis for rejecting the applicant’s case on the issue of credibility;

ii.   failing to consider the extended form of state acquiescence;

iii.   failing to fully consider the country of origin information (“COI”) when assessing the applicant’s case and cherry-pick COI;

iv.   procedural irregularity: the decision maker being a different person than the interviewing person;

v.   failing to consider human rights violation and if state protection would be available in Pakistan;

vi.   failing to call for psychological and/or psychiatric reports of the applicant;

vii.   applying incorrect standard of proof; and

viii.   lacking proper basis for consideration of internal relocation.

Discussion

10.  In an appeal against refusal of leave to apply for judicial review, this Court will only examine the decision of the Judge in light of the grounds advanced by the applicant.  The grounds of appeal as set out in Notice of Appeal only referred to the Director’s decisions and did not identify any error of the Judge’s decision and therefore are not viable grounds of appeal.  The appeal plainly has no prospect of success.

11.  In any event, having read the materials put before us, we are of the view that the findings of the Board, as well as the observations of the Judge, are justified.  We do not see any errors of law or procedure in the proceedings before the Board.  Nor is there any reasonable arguable basis to challenge the fairness of the process.  Determination of the merits of a non-refoulement claim is essentially a matter of the Board, not for the court.  We do not see any reasonable basis to upset the decision of the Board by way of judicial review.  Accordingly, we agree with the Judge that leave to apply for judicial review should be refused.

12.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.